By Musa Bassadi Jawara
On July 7, in “A flawed appointment: Why Mr Edi MO Faal cannot be The Gambia’s next Chief Justice,” I laid out the constitutional case against this nomination. The Gambia Bar Association had met on July 6, but its resolution was not made public until days after my article appeared. I had no inkling of their emergency general meeting, nor that their intervention would be so kinetic in Gambian jurisprudence. My analysis was not prophetic. It was patriotic. It was based on a plain reading of Section 139(2), love of country, and the duties of citizenship. I wrote to defend the law before the law defended itself.
What that ruling means
In its emergency general meeting, the Bar unanimously ruled that Mr Edi MO Faal is constitutionally barred from appointment to the Supreme Court under Section 139(2) of the 1997 Constitution. The legal question is closed. Section 139(2) sets three gates to the Supreme Court. Five years on The Gambia’s Court of Appeal. Five years as an appellate judge in a common law country. Or twelve years of qualifying practice before a High Court level forum in a common law state. The Bar found that Mr Faal clears none of them. He has never sat on our Court of Appeal. He has no five-year appellate record abroad. His ICC and consulting work do not meet the twelve-year practice threshold. The consequence is blunt: he cannot sit, he cannot swear the oath, and any judgment he signs as Chief Justice would be voidable. President Barrow cannot “consider” him. The Judicial Service Commission cannot “vet” him. The Constitution has already said no.
The dangerous vacuum
That leaves the Chief Justice seat empty in a constitutional emergency. The next 18 months will decide the TRRC prosecutions. The Janneh Commission’s seized assets are still before the courts. Term limit litigation is inevitable after the CRC draft collapsed on 22 September 2020. These cases cannot wait for an acting CJ with contested legitimacy. A Supreme Court that rules on executive power, transitional justice, and stolen wealth must be unassailable from day one. A nominee who fails s.139(2) does not just risk reversal. He risks a legitimacy crisis that paralyses the entire recovery.
The warning we wrote, then ignored
Other states saw this coming. Ghana’s 1992 Constitution, drafted after the PNDC era, demands that Supreme Court judges show scholarship or distinguished service beyond mere practice. Kenya’s 2010 Constitution, born from the 2007 to 08 crisis, makes “distinguished competence” a constitutional requirement in Article 166. Sierra Leone’s JSC guidelines after the civil war require written evidence of intellectual capacity. These countries learned that post autocratic courts collapse when the bench is filled by political reward or foreign prestige. They wrote the lesson into law.
The Gambia did the opposite. We wrote the lowest bar in the region. Twelve years of practice can substitute for appellate experience or scholarship. And we still failed it. The CRC 2018 to 2020 spent millions consulting International IDEA and the Bingham Centre to give us a new constitution. It died over term limits. We cannot now staff the old constitution’s highest court with a nominee who does not meet the old constitution’s lowest standard.
This is not compensation
The Chief Justice post is not a golden handshake for 44 years abroad. It is not compensation for ICC filings or ICSID arbitrations. It is not a retirement stint to cap a private career. Post autocratic states that treat the Supreme Court as patronage do not survive their transition. They repeat it. Every TRRC victim, every Janneh claimant, every young lawyer who believed 2016 meant the law would now be supreme. They are all watching to see if the Constitution applies to the powerful, or only to the powerless.
The only paths left
President Barrow has three lawful options. One, appoint a current member of the Court of Appeal who meets s.139(2). Two, identify a qualified Gambian from abroad with the required five years of appellate service or twelve years of qualifying practice. Three, seek a constitutional amendment to lower the bar, and explain to the nation why the Supreme Court deserves less. There is no fourth option. Proceeding with Mr. Faal is not a political risk. It is a constitutional breach.
Mr President, I wish to admonish you
Mr President, do not be sentimental about this issue. Yes, we are in an election year and everything is calibrated to that effect. But Dr King reminded us, “The time is always right to do what is right.” This is that time. Do not feel timid or low in esteem to reverse yourself on this nomination. Great leaders are measured by the courage to correct course. As John Maynard Keynes said when challenged on shifting his position, “When the facts change, I change my mind. What do you do, sir?” The facts have changed. The Bar has ruled. The Constitution is clear.
Personally, you will earn my respect, and the respect of history, if you listen to the concerns raised and save the country from inordinate litigation at the Supreme Court. Drop this nomination now and let us move on. All indications are that you will not prevail at the Supreme Court unless you intend to count your losses after ignominious defeats in recent times. Forcing this through does not project strength. Its projects defiance of the law you swore to uphold. Strength, Mr President, is found in restraint. Reverse this. The Republic will be stronger for it, and so will your legacy.
The decision is yours
President Adama Barrow, please listen to independent voices such as Musa Bassadi Jawara and the Gambia Bar Association. Your interest lies there. How many times in the recent past have your judiciary and legal advisers led you to the Supreme Court with devastating outcomes for you personally, for your legacy, and for the country. The call is yours.
My intervention in the July 7 article was born out of love of country. It was not a dogmatic exercise. A philosophical treatise, yes, but one bound by a solemn duty to the supreme interest of the nation.
On Tuesday I argued principle. Days later the Gambia Bar Association ruled on law, in essence buttressing my principled essay in the most unambiguous terms. Today I speak to power, directly. The Constitution has set the bar. The Bar has enforced it. The cases that will define our recovery are already on the docket. The only question left is whether you will seat a Chief Justice who can lawfully hear them. We have buried too many constitutions in this country. This one survives only if you choose the law over loyalty, and the Republic over a nomination. Decide, Mr President. The gavel, and history, are waiting.
This analysis concerns constitutional qualification only and makes no claim about Mr Faal’s professional conduct.
